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PETITIONER: UNION OF INDIA AND ORS.

       Vs.

RESPONDENT: M.P. SINGH AND ORS. ETC.

DATE OF JUDGMENT27/02/1990

BENCH: SAHAI, R.M. (J) BENCH: SAHAI, R.M. (J) KANIA, M.H.

CITATION:  1990 AIR 1098            1990 SCR  (1) 604  1990 SCC  Supl.  701     JT 1990 (1)   457  1990 SCALE  (1)336  CITATOR INFO :  D          1992 SC1277  (101)

ACT:     Military  Land  and Cantonment Service (Class  I  &  II) Rules  1951--Rule 4(v)(c) and 5(b)--Indian  Defence  Estates Service--Assistant       Military      Estate       Officers (Technical)--Seniority determination of.

HEADNOTE: The dispute in these appeals by special leave relates to the inter  se seniority of officers in Class ’A’ of  the  Indian Defence  Estate Service. Class ’A’ of the said service  com- prised  of  officers promoted from  two  different  channels viz.,  Assistant  Military  Estate  Officers  and  Assistant Military  Estate  Officers (Technical) of the  Military  and Cantonment  Service Class ’B’. The manner of  selection  and appointment  of these categories of officers  is  different. Whereas  Assistant  Military Estate Officers  were  promoted from among the service Class III staff of the military Lands and Cantonments Service; Assistant Military Estate  Officers (Technical)  were  appointed on the recommendations  of  the Union  Public Service Commission, from amongst the  officers who  were  released from Engineering Service of  Army  after 1962. There was however no difference in the performance  of their  duties. AMEOS were included in Class II  of  Military Land and Cantonment Service (Class I and II) Rules 1951  for the  first time in 1964, by virtue of a notification  issued in  1964  and  was incorporated in 1951 Rules  when  it  was amended in 1968. But no such notification was issued in  the case of AMEOS (Technical) until 1976; nor any other rule was applied to them. In other words selections and  appointments of  AMEOS (Technical) was made without any statutory  basis. To  avoid  the anomoly, AMEOT were included in Class  II  of 1951  Rules in 1976. Thus from this date officers  appointed as  AMEOT either under the 1968 Rules or prior to it  became members of Military Land and Cantonment Service to whom 1951 Rules  applied. But no provision was made for the period  of service  rendered  from 1964 to 1976, which  affected  their seniority  and promotion. According to the  appellant-Union, the service rendered during this period has to be deemed  as ad hoc. Respondents being aggrieved filed a Petition  before

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the  Central Administrative Tribunal. The  Tribunal  allowed the Petition and held that the seniority of AMEOT was to  he determined under Rule 11 of 1951 Rules on length of  regular service   in   the  cadre  and  accordingly   directed   the appellant-Union to re-determine 605 the seniority of officers. Hence this appeal by the Union of India. Dismissing the appeal, this Court,     HELD:  Seniority  of an employee and  its  determination depends  on service in the cadre to which he belonged or  to which he was appointed. [611B]     Effect  of Tribunal’s order in the instant case is  that it  cured the injustice perpetrated due to absence of  exer- cise  of power by the Government under Rule 4(v)(c) of  1951 Rules  as it stood amended since 1964.  Substantial  justice being  one of the guidelines for exercise of power  by  this Court the order is not liable to interference. [611F]     Justice  is alert to differences and sensitive  to  dis- crimination.  It  cannot be measured in terms  of  money.  A Government  of a welfare state has gruelling task  of  being fair  and just and so justice oriented in its  approach  and outlook. |611H]     Mere  rectification of mistakes or omissions  by  Courts and  Tribunals  should not prompt parties to  approach  this Court  by  Special Leave merely for taking a  chance  or  to protect  some vested interest except for sake of justice  or for  laying down law for benefit of Court and its  guidance. AMEOS were granted seniority from the date of appointment in MLC  service whereas similar benefit was denied to AMEOT  as they were working as ad-hoc. To remove this irritant  Tribu- nal directed that they shall be deemed to be holding regular posts.  Officers working since 1964 without any  flaw  could not be treated as ad hoc. In any case once review DPCs  were held it was incumbent on it to include these persons and  if necessary to evaluate their services or get it evaluated  by appropriate authority to regularise them and then  determine seniority.  But ignoring them in 1987 even they  had  become member of MLC service was arbitrary and unjustified.  [612A- D]     Col.  D.D.  Joshi and Ors. v. Union of India  and  Ors.. [1983]  2 SCC 235; Ranga Reddy and Ors. v. State  of  Andhra Pradesh, [1987] Suppl. SCC 15.

JUDGMENT:     CIVIL APPELLATE JURISDICTION: Civil Appeal Nos.  4397-98 of 1989 etc.     From  the  Judgment and Order dated  30.11.1988  of  the Central  Administrative Tribunal at New Delhi in  O.A.  Nos. 838 of 87 and 1502 of 1987. 606     K.  Sibal, Additional Solicitor General, A.  Subba  Rao, C.V.S. Rao and M.S. Ganesh for the appellants. Respondent No. 1 in-person. D.K. Garg, R.P. Oberoi and D.B. Vohra for the respondents. The judgment of the Court was delivered by     R.M. SAHAI, J. Seniority in services is usually irksome. But  the nature of dispute amongst officers in Class ’A’  of Indian Defence Estates Service, who were promoted from Class ’B’  of  Military  and Cantonment service  where  they  were working  as Assistant Military Estates Officers  (AMEO)  and Assistant  Military F. states Officers (Technical)  (AMEOT), is  slightly, unusually. That is why apart from  correctness

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or  otherwise of directions issued by the Tribunal  (Central Administrative  Tribunal,  New  Delhi)  for   re-determining seniority  one  of the issues debated was if this  Court  in exercise of its powers under Article 136 of the Constitution of  India should interfere with orders of Tribunal  if  sub- stantial justice has been done between parties. To this  may be added, yet, another, namely, if the Union of India should have approached this Court by way of Special Leave  Petition not for sake of justice or injustice, legality or illegality of  any provision but because it may have to pay  few  thou- sands, may be few lakhs more.     But, first, manner of appointment of two group of  offi- cers and rules by which they were governed from time to time may  be noticed as even though initially posts of both  AMEO and  AMEOT were sanctioned and created by the  President  in 1962  and they were governed for some time by different  set of rules but were brought in common stream in 1976 and  were promoted  in Class ’A’ before fresh rules were  enforced  in 1983  and 1985, yet entire thrust of attack to justify  dif- ferential  treatment to AMEOT was rounded on  difference  in method  of their selection. AMEOS were included in Class  II of  Military  Land and Cantonment Service (Class I  and  II) Rules,  1951 for the first time in 1964. Relevant  amendment by  notification  issued in 1964 was  incorporated  in  1951 Rules when it was amended in 1968. Amended Rule 4(v)(c) read as under: "Class II of the Service shall consist of Executive Officers Class II, Assistant Military Estates Officers and such other posts, as may, by order of the Government be declared to  be included in Class II cadre of the Service." 607 Manner  of  appointment to this class was provided  by  Rule 5(b) which is extracted below: "(b)  Appointment to Class II Cadre of the Service shall  be made in the following manner, namely:-- (1)  upto  20% of vacancies in Class II, by  promotion  from among the serving Class III staff of the Military Lands  and Cantonments Service having service and educational  qualifi- cations specified in sub-rules (c) and (e); (2)  upto 20% of vacancies by direct recruitment made  by  a selection from among serving employees of Cantonment  Boards having  service and educational qualifications specified  in sub-rules (d) and (e); (3)  the remaining vacancies from among the  candidates  who qualify  at the Examination and are recommended by the  Com- mission but who fail to secure Class I appointment in any of the Central Services.          ’Provided  that  (i)  for a period  of  five  years commencing  from the 29th January, 1966, 30 per cent of  the permanent  vacancies to be filled by direct  recruitment  in any year shall be reserved for being filled in by the  Emer- gency Commissioned Officers of the Armed Forces of the Union who  were commissioned on or after the 1st  November,  1962, and who were released at any time thereafter." In  1981  service  known as Military  Lands  and  Cantonment Service  (Group A) was constituted. 75% of  the  substantive vacancies, in this Group ’A’, junior scale, were to be filed by  direct  competition and 25% by promotion  from  a  panel prepared  on  the basis of selection on merit in  ratio  1:1 from  amongst  Cantonment Executive Officer  Group  ’B’  and Assistant Military Estates Officer Service (Group B) who had not rendered less than 3 years regular service.     AMEO  (Technical)  on the other hand were  officers  who were  released from Engineering Service of Army after  1962. Since  there was increase in work load and they were  to  be

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absorbed  as well they were appointed on  recommendation  of UPSC  (Union  Public Service Commission) in  1964  and  1965 against  posts which were created from time to time  by  the Military Land and Cantonments Department as is clear 608 from various orders issued in 1963, 1967 and 1970 which have been extracted in the order of Tribunal to demonstrate  that the  Director,  Military Lands and Cantonment,  Ministry  of Defence, issued letters conveying the sanction of the Presi- dent to the creation of various posts in the Military  Lands &  Cantonment  Service  which  included  Assistant  Military Estates  Officers  (Technical).  Although  the   appointment letter  issued to each officer mentioned that the  post  was temporary yet each was appointed on probation of two  years. The word "Technical" appears to have been added because they were  engineers. Otherwise there was neither  difference  in pay nor in work as the AMEOT were appointed to work as  AMEO as  well. AMEOT were thus qualified persons holding rank  in Army. To say that they were lesser in merit than AMEO, only, because they had not appeared in competitive examination was being uncharitable to them.     To misfortune of AMEOT they were neither included in the Class II cadre of 1951 Rules nor any other rule was  applied to  them. Presumably because of method of  recruitment.  All the same it was very unsatisfactory that posts of AMEOT were being created and selections made in pursuance of advertise- ment issued by the UPSC yet they were not being provided any statutory  basis.  Realising this rules  were  framed  under Article  309 in 1968, but these rules again did not  provide for  promotions,  seniority etc. However,  the  anomoly  was finally  removed, when officers appointed prior to  1967  or under 1968 Rules as AMEOT were included in Class II of  1951 Rules by amending Rule 3 in 1976 which read as under: "3. The Service shall be constituted by officers appointed-- (i) in accordance with these rules; (ii)  in accordance with the Military Lands and  Cantonments Service  (Assistant  Military  Estates   Officers-Technical) Recruitment Rules, 1968; and (iii)  in  consultation with the  Commission,  as  Assistant Military  Estates  Officer  (Technical), prior  to  the  1st January, 1967."     Thus  from this date officers appointed as AMEOT  either under the 1968 Rules or prior to it became members of  Mili- tary  Lands and Cantonment Service (MLC) to whom 1951  Rules applied. On that there is no dispute. But what about 1964 to 1976? Should they be 609 deemed to have served under no rules as claimed by AMEOS and strangely  even by Union, or they were governed  by  Central Civil Services (Temporary)Rules 1965 (CCS Rules). And if  so what  was its effect on their promotion and  seniority.  For this one of the appointment letter issued to AMEOT  contain- ing terms and conditions is extracted below:-- MEMORANDUM       Subject: Recruitment to the post of Assistant Military Estate  Officer  (Technical)  Military/Lands  &  Cantonments Service.           On the recommendation of the Union Public  Service Commission, the President is pleaded to offer Shri  Mahandra Pal  Singh, a temporary post of Assistant  Military  (Estate Officer Technical) in the Military Lands & Cantonment  Serv- ice Under Ministry of Defence.            xxx                xxx             xxx The  terms and conditions of appointment are as follows: (i)  The  post is temporary. In the event  of  its  becoming

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permanent his claim for permanent absorption will be Consid- ered in accordance with the rules in force. (ii) He will be on probation for a period of two years  from the date of appointment which may be extended at the discre- tion  of  the competent authority. Failure to  complete  the period  of  probation to the satisfaction of  the  competent authority  will render him liable to discharge from  service or reversion to his parent department in case he is  holding a permanent posts. XXX                      XXX                   XXX (iv)  The appointment may be terminated at any time  on  one month’s notice given by either side, viz., the appointee  or the appointing authority, without assigning any reasons,  or by  reverting  the individual to his parent  department,  in case he is holding a lien. The appointing authority,  howev- er,  reserves the right of terminating the services  of  the appointee forthwith or before the expiry of the stipulated 610 period  of notice by making payment to him of a sum equi-  . valent to the pay and allowance for the period of notice  or the unexpired portion thereof. (v) He will be subject to conditions of service as  applica- ble  to  temporary civilian Government  servants  paid  from Defence  Services  Estimates in accordance with  the  orders issued  by  Govt.  of India from time to time.  He  will  be subject to Field Service Liability Rule, 1957." What stands out Clearly from it is that they were  appointed in Military Lands and Cantonment Service (MLC) under  Minis- try  of Defence. That is clear from the order  creating  the posts  from time to time. Letter dated 27th April,  1963  is extracted below: "To The Director, Military Lands & Cantts. New Delhi.       Subject:  Establishment  of the  New  Eastern  Command Sanction of Staff. Sir,           Consequent on the establishment of the New Eastern Command and re-organisation of the existing Eastern  Command into  Central Command, I am directed to convey the  sanction of  the President to the creation of the following posts  in the Military Lands and Cantts. Services:-- 1. Dy. Director, Military Lands & Cannts.     1 2. Asstt. Director, ML & C.                 1 3. Military Estates Officer (Bihar & Orissa)    1 4. Asstt. Mily. Estates Officer, (Technical Class II)  2" Therefore  it  is too late to claim that they were  not  ap- pointed to Military Land and Cantonment Service under Minis- try  of  Defence.  Was their status effected  or  nature  of employment altered because 611 Central Civil Service (Temporary service) 1965 Rules applied to  them. These rules applied to ’service under the  Govern- ment of India in the Ministry of Defence  ....  paid out  of the Defence Service Estimates’. Purpose of the rule was  not to  create  a cadre or grade of temporary employees  but  to provide  statutory basis to employees of  different  depart- ments  mentioned  in it and accord  them  a  quasi-permanent status if they fulfilled the requirements mentioned in  Rule 3.  Seniority,  promotion etc. were to be  governed  by  the rules  under  which the temporary  employee  was  appointed. Therefore,  seniority of an employee and  its  determination depended on service in the cadre to which he belonged or  to which he was appointed.     That  the AMEOT were appointed to MLC service cannot  be

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disputed. Nor it can be disputed that they were appointed to posts  which were created by the President and its  sanction was  conveyed by the Director of MLC. The  only  shortcoming was  that  there was no declaration that  these  posts  were included in Class II Cadre. That also stood removed in 1976. Since  it included every AMEOT whether appointed under  1968 Rules or even prior to it all those AMEOT who were appointed in  1964 or 1965 also become member of service to whom  1951 Rules applied. Automatic consequence of it was that seniori- ty of AMEOT was to be determined under Rule 11 of 1951 Rules on length of regular service in the cadre. That is what  the tribunal held. And rightly. Whether service rendered by  the respondents between 1964 to 1976 was regular or it could  be deemed to be regular as held by the Tribunal is different.     Assuming, the Tribunal committed error in applying  1951 Rules  to service of AMEOT prior to 1976, does it  call  for any interference? Is the order not just and fair? Effect  of Tribunal’s order is that it cured the injustice  perpetrated due to absence of exercise of power by the Government  under Rule  4(v)(c) of 1951 Rules as it stood amended since  1964. Substantial justice being one of the guidelines for exercise of power by this Court the order is not liable to  interfer- ence.     What  is baffling is filing of the SLP by Union  Govern- ment. Not because of any injustice to AMEO as that has  been taken  care of by Tribunal by protecting all those  who  are working but because if it works out seniority of AMEOT  from back date it may have to pay substantial amount and creation of  superanuary  posts may further entail cost.  Justice  is alert  to  differences and sensitive to  discrimination.  It cannot  be  measured in terms of money. A  government  of  a welfare state has gruelling task of being fair and just  and so justice 612 oriented in its approach and outlook. Mere rectification  of its mistakes or omissions by Courts and Tribunals should not prompt parties or it to approach this Court by Special Leave merely for taking a chance or to protect some vested  inter- est  except for sake of justice or for laying down  law  for benefit of Court and its guidance. Neither was in this case.     Injustice to respondents is apparent as admittedly these officers were promoted in Class ’A’ in 1978 and are  working since then uninterruptedly yet when review DPC were held  in pursuance of the judgment given by Allahabad High Court  and seniority  list was published in 1987, they were ignored  as they  were working as ad-hoc resulting in pushing  up  AMEOS who  were junior to them. AMEOs were granted seniority  from the  date  of  appointment in MLC  service  whereas  similar benefit was denied to AMEOT as they were working as  ad-hoc. To remove this irritant Tribunal directed that they shall be deemed  to be holding regular posts. Officers working  since 1964 without any flaw could not be treated as ad-hoc. In any case  once review DPCs were held it was incumbent on  it  to include  these  persons and if necessary to  evaluate  their services or get it evaluated by appropriate authority  regu- larise  them and then determine seniority. But  in  ignoring them in 1987 even when they had become member of MLC service was arbitrary and unjustified.     Two  other  objections one about delay and  other  about nonjoinder raised, again, by Union Govt. may be examined. As regards  former suffice it to say that the occasion  to  ap- proach  Tribunal  arose when seniority  of  respondents  was disturbed  and  panels  recommended in 1972  and  1979  were redrawn in 1987 and seniority were refixed in Group ’B’ with effect  from March 1968. Therefore objection of claim  being

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slate  or belated cannot be accepted. Nor there is any  sub- stance  in defect due to non-joinder of  parties.  Objection stands answered by the ratio in Col. D.D. Joshi & Others  v. Union of India & Others, [1983] 2 SCC 235; where it was held that  it was not necessary to implead all parties  if  chal- lenge  was  to validity of rule. As regards  Ranga  Reddy  & Others  v.  State of Andhra Pradesh., [1987] Suppl.  SCC  15 relied on behalf of the appellant in support of the  submis- sion  that the order passed by the Tribunal was vitiated  in the absence of interested parties cannot be accepted as some of those officers who were directly affected or were immedi- ately likely to be effected got themselves impleaded  before the Tribunal. Therefore, the defect, if any, stood  removed. Moreover the Tribunal protected interests of all 613 these persons who were working at present by directing  that they  shall not be disturbed. Non-impleadment of  these  who may  be  effected in future could not  render  the  petition vulnerable.     In  the result both the appeals fail and are  dismissed. The  respondents  shall be entitled to costs from  Union  of India. Y. Lal                              Appeals dismissed. 614